Edwards on the Minority Rights First Amendment

Jerry Edwards, West Virginia University College of Law, has posted The Birth of the Minority Rights First Amendment:

An incongruence exists in the literature on the nineteenth-century history of expressive freedom. Legal-tradition scholars have determined that the First Amendment was majoritarian, observing that outside of judicial enforcement of the rule against prior restraints, courts rarely involved themselves in disputes over expressive rights. Instead, the judiciary deferred to the judgments of legislatures and juries. Meanwhile, scholars examining the nineteenth-century popular tradition discovered a very different understanding of the First Amendment. They found that the antislavery conception of expressive freedom centered dissenters’ rights, arguing that Republicans embedded a libertarian understanding of free speech in the Fourteenth Amendment in 1868. This Article reexamines the nineteenth-century popular tradition and discovers new evidence that reconciles these seemingly incompatible traditions.

The popular-tradition scholars are correct that the antislavery movement oversaw a shift from the founding generation’s majoritarian understanding of expressive freedom to a minority rights conception. Slave states, emboldened by the majoritarian paradigm, suppressed antislavery advocacy and the fledgling Republican Party in the South. This prompted antislavery Republicans to advocate for protection of political dissenters, unpopular minority groups, and free discussion nationwide, birthing the minority rights First Amendment. However, Republicans did not intend for this to be a counter-majoritarian right. The judiciary had historically backed the Slave Power, so Republicans did not trust it to secure and preserve liberty. Instead, they sought to implement their minority rights vision through normative prescriptions and structural protections—namely, multiracial democracy in the South and congressional enforcement of civil rights. Accordingly, majoritarian legal doctrine was not a barrier to the Republican vision of expressive freedom. Unfortunately, this project failed when white majorities, aided by federal acquiescence, overthrew multiracial democracy in the South, taking down the minority rights First Amendment with it.

This Article’s findings provide further support for the view that the juricentric First Amendment is a twentieth-century invention. This means that the history the Supreme Court has used to justify its interventionist approach in First Amendment cases is misleading at best and mistaken at worst. Its reliance on these historical misrepresentations has proven detrimental to the development of speech doctrine, obscuring the contingent decisions it is making in the present. This Article suggests that the Court embrace transparency, eschew law-office history, and recommit to defending multiracial democracy.

--Dan Ernst 

Smith and Chang on Stravinsky's "Star-Spangled Banner" and the Law

Michael L. Smith, University of Oklahoma College of Law, and Yoo Jung Chang, a cellist, have posted Stravinsky's National Anthem:

Igor Stravinsky (LC)

In January 1944, famed composer Igor Stravinsky was scheduled to conduct the Boston Symphony Orchestra in performing his controversial arrangement of “The Star-Spangled Banner.” Before the performance took place, the police arrived in Stravinsky’s dressing room and informed him that his arrangement violated a Massachusetts law against altering the national anthem. Faced with the prospect of a criminal violation, and with the police already removing the offending arrangement from the music stands, Stravinsky opted to conduct the traditional version of the anthem.

This Article takes a deep dive into Stravinsky’s distinctive anthem arrangement, surveying its development, performance, and reception. Along the way, we dig into Massachusetts’s anthem restriction—a 1917 law that remains on the books to this day. In doing so, we address the parallels between the law’s wartime development and its wartime enforcement against Stravinsky. We argue that Stravinsky’s run-in with the police was unwarranted, both because Stravinsky’s arrangement did not violate the statute, and because the statute itself ran afoul of the First Amendment. Our historical investigation and analysis shed light on modern issues, including the phenomenon of patriotic outrage, the role of moral panic in the development and enforcement of the law, and the dangers of leaving unconstitutional zombie laws on the books.

--Dan Ernst 

Kastenberg on Historians in the Frick Libel Case

Joshua E. Kastenberg, University of New Mexico, has published, in the St. Louis University Law Journal, The Past May Be Uncomfortable: Frick v. Stevens, the Protection of Scholarly Inquiry, Knowledge, and a Free Society as a Retrospective and Salient Study for Our Time.  It is the first in a series of articles on historians as expert witnesses.  We will note the others as they appear.

The past may be “uncomfortable,” the Washington Post pointed out on July 1, 1966, before adding a far more serious observation: “[t]he suppression of history—which is to say the judgment of historians—is an incongruity of a free society.” A year earlier, Helen C. Frick sued Professor Sylvester K. Stevens in Pennsylvania’s Cumberland County Court of Common Pleas to prevent the publication of his recent history book, Pennsylvania: Birthplace of a Nation. She claimed that the book libeled her deceased father and caused her a loss of standing in the public’s estimation and emotional distress. Judge Clinton R. Weidner indicated his intention to decide the case on the state’s libel laws rather than to dismiss the suit on a First Amendment basis. Equally troubling, Weidner sided with Frick’s attorneys on their evidentiary objection to preclude Stevens from having distinguished historians testify as experts as to the merits of his book. In issuing his ruling, Weidner determined that the historian experts would simply provide otherwise inadmissible hearsay. Professional historians had, on at least eight occasions, testified as experts in state and federal trials as well as before Congress on critical issues such as arms reductions and neutrality legislation. Ironically, if not hypocritically, in 1935 Frick employed a professional historian, Frank Jewett Mather Jr. of Princeton University, when her curator sued her for libel. Perhaps from the vantage of the present, Frick’s lawsuit appears bizarre but in 1965 Pennsylvania’s libel laws included the phrase “tending to blacken the memory of the dead,” as did several other states, and in theory, these laws made her lawsuit feasible.

--Dan Ernst 

Weekend Roundup

• Sally Hadden, Western Michigan University, will speak on “The First Massachusetts Constitution and How Town Actions Derailed It,” online at noon today as the first in the Bidwell House Museum's series of history talks.  It is free for members of the museum and $15 for others.  Register here.

• A review symposium on Serena Mayeri’s Marital Privilege: Marriage, Inequality, and the Transformation of American Law, with contributions from Albertina Antognini, Cary Franklin, Jessica Dixon Weaver, Deborah Dinner, Linda C. McClain, and Katie Eyer, with a response by Professor Mayeri (BU Law Review Online).  

• Marlene Trestman will be in conversation about her book, Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin, in person and online, with Senior Judge Beryl A. Howell of the US District Court for the District of Columbia at the Capital Jewish Museum in DC on June 4, from 6:30-7:30.  Register here.

• Bill Littlefield reviews Gautham Rao's White Power: Policing American Slavery (arts fuse).

• Jonathan Parry reviews H.S. Jones’s Liberal Worlds: James Bryce and the Democratic Intellect (London Review of Books).

• Robert Tsai and others will discuss John Brown's provisional constitution on June 29. 

• Rodger Citron on that podcast with Samantha Barbas on her book on New York Times v. Sullivan (Verdict).   

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Weekend Roundup

• From In Custodia Legis: A Brief Legislative History of the U.S.-Canadian Border and Nathan Dorn on James Wilson and Natural Law in the First Years of the Republic. 

• Rodger Citron interviews Samantha Barbas on the Civil Rights setting of her book on New York Times v. Sullivan (Touro Law Review Podcast).   

• On May 5, the Historical Society of the New York Courts and the Supreme Court of the State of New York, Appellate Division, Third Department, will host New York’s Own Revolution: The Anti-Rent War of the Hudson Valley and Its Relevance Today, a film screening with Bruce W. Dearstyne, Nancy Newman, and Victoria Kupchinetsky, 

• On June 24, the Gerald R. Ford Presidential Museum will host The Original Debates over Constitutional Interpretation with Jonathan Gienapp. 

• On June 25, Jesse Wegman, a Senior Fellow at the Brennan Center for Justice, will speak at the Atlanta History Center on his book The Lost Founder: James Wilson and the Forgotten Fight for a People’s Constitution.

• On September 17, the Clough Center for the Study of Constitutional Democracy at Boston College will hold the latest version of its annual event, What the Constitution Means to Us, with Doris Kearns Goodwin and Akhil Reed Amar. 

• For Law Day, the Supreme Court Historical Society posted Judge Jon O. Newman's conversation with Ross Davies on three lost early circuit court opinions by the justices. 

• When, in his address to Congress, King Charles III said that “the U.S. Supreme Court Historical Society has calculated that Magna Carta is cited in at least 160 Supreme Court cases since 1789, not least as the foundation of the principle that executive power is subject to checks and balances” he apparently was referring to Catholic University professor Derek Webb’s article in the Journal of Supreme Court History, “What Say the Reeds in Runnymeade? Magna Carta in Supreme Court History,” says the Supreme Court Historical Society.   

• Part 2 of the Lawbook Exchange's April 2026 list of Scholarly Law and Legal History is here.

• ICYMI: A Lancaster, PA, museum opens an exhibit on Thaddeus Stevens (WGAL). Frankfort, Kentucy, courthouse may be renamed in honor of John Marshall Harlan (Kentucky Today). The Rise and Fall of Judge William H. Simmons (History Link).  Lawrence Glickman, Cornell University, on birthright citizenship in the advice columns (Atlantic).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers 

DeFraia on Branzburg's Distortion of Policy and History

Daniel DeFraia has published "The Branzburg myth: how secrecy and law distort history and misinform policy" online, open-access in the American Journal of Legal History:

This is an article about how secrecy and law distort history and misinform policy. Beginning in the 1960s and culminating with the Supreme Court’s 1972 ruling in Branzburg v Hayes, litigation and debate over the reporter’s privilege established the expectation that journalists resist subpoenas, warrants, and informal requests for evidence. However, archival research and records obtained in an Freedom of Information Act (FOIA) request reveal that journalists cooperated with federal criminal investigations after Branzburg. The case, symbolic of the rise of adversarial journalism, did not end compliance, but submerged it. Secrecy—overclassification of records, non-disclosure of grand jury proceedings, and the confidentiality of subpoenas—has allowed a narrow understanding of journalists’ role in a democracy to dominate case law, historical and legal scholarship, and public debate. Secrecy and law distorted the public record, then history, as salient moments of conflict disproportionately shaped collective memory, which misinformed scholarship and policy debate on news subpoenas. The hidden tradition of journalists cooperating with local, federal, and international authorities is, this article concludes, an argument for protecting press freedom.

--Dan Ernst 

Lake on Men's Suits for Sexual Misconduct Defamation

Jessica Lake, Melbourne Law School, has published Professional authority and institutional integrity: men's suits for sexual misconduct defamation in nineteenth-century America, open access, in the American Journal of Legal History:

Since the #MeToo movement, prominent men accused of sexual misconduct have frequently brought defamation claims against their accusers and media companies that have published the allegations. This trend has generated a wealth of debate and scholarship, but little research has placed such cases within a historical context. This article seeks to fill this gap in legal history by examining men’s sexual misconduct defamation claims in the nineteenth-century United States. By analysing numerous court records and connecting them with shifts in work patterns and models of masculinity, it argues that men’s claims for sexual misconduct defamation were increasingly connected to the rise of the professions during the nineteenth century. Whereas ideas of ‘male fortitude’ in the face of sexual accusations were central to judicial adjudication of rural men’s claims—particularly farmers—courts took the vindication of the sexual reputations of urban, professional men more seriously. Such scandals had the capacity not just to insult or wound individual feelings or threaten bonds of community or kin, but they could imperil respect for the emerging professions and undermine the authority of social institutions. Scandals involving professors could erode the repute of universities, reports about doctors could undermine respect for medicine, rumours about lawyers could breed distrust of the courts, and news articles about teachers could threaten the education system. Defamation cases show that men’s sexual transgressions mattered most when they questioned the authority of professional expertise and republican projects of other men.

--Dan Ernst

Sherman and Nelson on the Weak Historical Case for Regulating Occupational Speech

Paul M. Sherman and Daniel Nelson of the Institute for Justice have posted The (Weak) Historical Case for Licensing Speech:

Increasingly, governments use occupational licensing to control who may speak on certain subjects and what licensees may say. The Supreme Court has twice rejected governments' doctrinal justifications for excluding occupational speech from First Amendment protection-first in NIFLA (2018) and again in Chiles (2026). But it has left open one possible source that could justify such exclusion: "persuasive evidence" of a "heretofore unrecognized" tradition of regulating occupational speech. This Article--the first to fully examine whether any such tradition exists--shows it does not.

This history has direct implications for today. Protecting occupational speech would protect against government controls on conversations between professionals and their patients that extend beyond the "conversion therapy" at issue in Chiles, like gender-affirming talk therapy. And it would undermine modern-day bans on "unlicensed" advice, including bans on who may provide legal advice, which have spurred our nation's current "access-to-justice crisis. 

--Dan Ernst 

Weekend Roundup

• Caitlin Tully, a Ph.D. candidate in History at Princeton University, has published an essay in The Atlantic: "The Court has an Easy Answer on the Fed."  

• From Time's "Made by History": Douglas Boin (Saint Louis University) on "How Patriarchy Undermined the Roman Republic."   

• Malick W. Ghachem, MIT, discusses his book The Company and the Colony: Haiti after the Mississippi Bubble with Gerald Horne on the “Freedom Now” program on KPFK radio.

• Jill Hasday, Minnesota Law, discussed her book We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality with Kate Shaw on the Strict Scrutiny podcast.

• Allen Boyer reviews Kathryn Schumaker's Tangled Fortunes (Mississippi Books Page).   

• We've spotted an advertisement for a predoc university assistantship with Prof. Dr. Lena Foljanty, Chair for Globalisation and Legal Pluralism, at the Department of Legal and Constitutional History at the University of Vienna. 

• Lawbook Exchange's November 2025 catalogue on Scholarly Law and Legal History (Part 1; Part 2).

• ICYMI:  A Very Short History of Freedom of Speech by Oliver Bramley (Constitution Society). How Germany's Nuremberg trial for Nazi crimes transformed international law (rfi).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Fighting Words at the Founding

We were intrigued by this student note: Fighting Words at the Founding, Harvard Law Review 138 (June 2025): 2049-2070.  From its introduction: 

At the Founding, speakers of fighting words were indictable only if they intended to cause violence. Yet today, Americans who speak fighting words without any intention of causing a fight routinely face criminal sanctions. The Supreme Court has yet to rule definitively on whether the First Amendment requires that the government prove mens rea to punish the speaker of a fighting word. But in the lower courts, nearly every defendant prosecuted for speaking a fighting word faces strict liability: Her interior mental state is irrelevant. That approach breaks with the uniform practice of the common law at the time the nation ratified the First Amendment.

--Dan Ernst

Weekend Roundup

• Reminder: at noon on September 10, the Supreme Court Historical Society will sponsor a virtual lecture and conversation with John Q. Barrett, “Away Without Leave but Back in Washington, Briefly: Nazi Prosecutor Justice Robert H. Jackson on the Road to Nuremberg, September 1945.”  Register here.  

• The Supreme Court Historical Society’s latest episode in its Breaking History video series treats “two extraordinary behind-the-scenes stories from the latest Journal of Supreme Court History” concerning Reed v. Reed (1971) and Miranda v. Arizona (1966)

• In an episode of Historians & Their Histories, the Massachusetts Historical Society spoke with Cornelia H. Dayton, University of Connecticut, about her her research into the life of John Peters, the husband of acclaimed poet Phillis Wheatley, as well as abour Professor Dayton’s “path to becoming an historian, her early interest in constitutional law, and the challenges of researching subaltern subjects, such as Peters, who left few firsthand accounts.”  The transcript is here.

• Over at ESCLH Blog: a post on the "(Dis)continuity of Legal Systems in Czechoslovakia, Hungary and Poland after WWII: Difficult Heritage." 

• On Monday, September 8, at 6:30 p.m. at Paul Sawyier Public Library in Frankfort, Kentucky, Thomas C. Mackey, University of Louisville emeritus, will discuss his book, Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime (State-Journal).  

• Also on Monday, September 8, Aziz Rana, BC Law, will give the 2025 Kops Freedom of the Press Lecture, "The Constitution in crisis: how Americans came to idolize a document that fails them," at Cornell University, from 12-1 p.m.  More.  

• In C-SPAN’s “Bell Ringer” series, Joseph Crespino, Emory University, talks about “the changes in society, politics, institutions and the U.S. Senate in the 20th and 21st centuries.”  

• Keith Whittington, Yale Law School, will deliver the Constitution Day address at Washington and Lee University at 5 p.m. on September 18 on “By Birth Alone: The Original Meaning of Birthright Citizenship in the Fourteenth Amendment" (More). 

• Notre Dame Law’s notice of the second ASLH/Notre Dame Graduate Legal History Colloquium.

• A columnist praises the appointment of Lee Strang to direct the new Salmon P. Chase Center for Civics, Culture, and Society at the Ohio State University because the center promises to address "the partisan biases that have oozed into the teaching of American history and civic responsibility" (Columbus Dispatch).   

• The 14th Amendment Center for Law and Democracy at the Howard University School of Law has launched a newsletter, The Refounding.

• ICYMI:  How a Chinese Laundryman Shaped US Civil Rights (KQED).  The Evolution of the Bail System in America (History). The Volatile History of Flag Burning in the US (History).  The "Founders Museum" from White House and PragerU blurs history, AI-generated fiction (NPR).  Speaking of Founders: How about the one who lost a leg?  (Smithsonian).  And there's no rest for the Madison revisionist: “'If we truly want to look at the birthplace of the United States Constitution, it’s not in Philadelphia, it’s on the second floor of this home,' Montpelier’s Director of Interpretation and Visitor Engagement Kyle Stetz said." (29News).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Barbas on Beauharnais

Samantha Barbas, University of Iowa College of Law, has posted The Story of Beauharnais v. Illinois, which is forthcoming in the Journal of Free Speech Law:

In 1952, the U.S. Supreme Court issued its landmark First Amendment decision in Beauharnais v. Illinois, upholding an Illinois hate speech law. Beauharnais, involving a white supremacist “hate group” leader in Chicago, was the Supreme Court’s first encounter with racist speech. The Illinois statute, enacted in 1917, was one of several hate speech or “group defamation” laws that existed in the United States during the first half of the twentieth century. Commentators believed that the Supreme Court’s approval of the Illinois statute would lead other jurisdictions to enact hate speech laws. Yet Beauharnais facilitated the demise of hate speech laws. This article tells the story of Beauharnais v. Illinois and explains why the Supreme Court’s ruling helped bring about the end of hate speech laws in America.

--Dan Ernst 

Dabhoiwala's "What Is Free Speech?"

Fara Dabhoiwala, Princeton University, has published What Is Free Speech? The History of a Dangerous Idea (Harvard University Press):

Every premodern society, from Sumeria to China to seventeenth–century Europe, knew that bad words could destroy lives, undermine social order, and create political unrest. Given the obvious dangers of outspokenness, regulating speech and print was universally accepted as a necessary and proper activity of government. Only in the early 1700s did this old way begin to break down. In a brief span of time, the freedom to use words as one pleased was reimagined as an ideal to be held and defended in common.

Fara Dabhoiwala explores the surprising paths free speech has taken across the globe since its invention three hundred years ago. Though free speech has become a central democratic principle, its origins and evolution have less to do with the high-minded pursuit of liberty and truth than with the self-interest of the wealthy, the greedy, and the powerful. Free speech, as we know it, is a product of the pursuit of profit, of technological disruption, of racial and imperial hypocrisy, and of the contradictions involved in maintaining openness while suppressing falsehood. For centuries, its shape has everywhere been influenced by international, not just national, events; nowhere has it ever been equally available to women, the colonized, or those stigmatized as racially inferior.

Rejecting platitudes about the First Amendment and its international equivalents, and leaving no ideological position undisturbed, What Is Free Speech? is the unsettling history of an ideal as cherished as it is misunderstood.

Here is a recording of Professor Dabhoiwala's recent book talk at Politics and Prose.

--Dan Ernst

Barbas on the Absence of American Hate Speech Laws

Samantha Barbas, University of Iowa College of Law, has posted How American Civil Rights Groups Defeated Hate Speech Laws, which is forthcoming in the Journal of Free Speech Law:

In the United States, “hate speech” is generally protected by the First Amendment. Hate speech is considered to be “free speech” unless it provokes imminent violence or constitutes a “true threat” or “fighting words.” No other nation protects the right to express hate so vigorously.

This article explains one potential reason for the absence of hate speech laws in America –the historic opposition of minority civil rights groups to hate speech laws. Since the beginning of the twentieth century, civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee spoke out against hate speech laws and campaigned to defeat proposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that limitations on freedom of speech would hinder the efforts of minority groups to achieve racial and religious equality. These civil rights groups concluded that the most effective way to reduce racial and religious hatred was to combat hate speech through counter-speech and education. This article tells the story of how and why civil rights organizations opposed hate speech laws, and how that opposition changed American law and public policy.

--Dan Ernst

Weekend Roundup

• Northwestern Law has a post on the grants Ajay K. Mehrotra received in support of his book project, “American Outlier: Economic Inequality and the U.S. Historical Resistance to National Consumption Taxes.”  On that NEH grant, though, see this and this. 

• Columbia Law's notice of new faculty member and legal historian Kate Redburn.     

• 
  Congratulations to Laura Flannigan, University of Oxford, for winning the Royal Historical Society's first book prize for Royal Justice and the Making of the Tudor Commonwealth, 1485–1547 (Cambridge University Press, 2023).

• Balkinization has completed its symposium in honor of Ken Kersch.  Contributors were Jack Balkin, Rogers M. Smith, Mark A. Graber, Sanford Levinson, George Thomas, Mary Ziegler, James E. Fleming, Linda C. McClain, Carol J. Nackenoff, Logan E. Sawyer III, and Dennis J. Wieboldt III. 

• Also over at Balkinization, Gerard Magliocca ponders "The Mystery of Birch Bayh's Amicus Brief in Reed v. Reed."   

• Samantha Barbas, Iowa Law, recently spoke on the history of freedom of speech and press at the Aspen Ideas Festival.     

• Over three days in October, Maggie Blackhawk, NYU Law, will deliver the 2025 Rothbaum Distinguished Lecture in Representative Government at the University of Oklahoma.  Professor Blackhawk's topic is Colonial Administration: Empire, Civilization, and the Making of Political Science.

• "The Margery Hunter Brown Indian Law Clinic at the University of Montana has embarked on an ambitious project to create the Indian Law Portal – a comprehensive digital archive of legal documents from each of Montana’s tribal nations" (University of Montana).  

• "Preliminary report into Indian boarding school history lays the groundwork for dismantling policies that have harmed Indigenous people" (Washington State Attorney General).

• “Becoming Thurgood: America’s Social Architect,” a new one-hour documentary, premieres on Tuesday, September 9, on PBS.  "What sets this film apart is that for the first time, [Thurgood] Marshall’s story is told in his own words—drawn from a rare eight-hour oral history recording" Chicago Defender).

• Time's Made by History:  Ryan LaRochelle and Kate Flynn say that History Shows us Why a Non-Partisan U.S. Military is Essential.

• At Inside Higher Ed: Michael Bannerjee (UC Berkeley) draws on the 1819 Dartmouth College case to argue that "Universities Need to Go Corporate"; doing so could "preserve institutional autonomy and defend academic freedom." 

• How the Heritage and the US Department of Education would have us observe the 250th. 

• The Institute of Historical Research has posted online its archive of interviews with UK historians, including Christopher Hill, Eric Hobsbawm, E P Thompson, Dorothy Thompson, and Maurice Cowling (History and Policy). 

• The comments on that proposal of the American Bar Association to double the number of required experiential credit hours from six to twelve have been posted online and are summarized here.  Mine is one of them.  DRE 

• The July 2025 newsletter of the Historical Society of the D.C. Circuit is now available here.

• ICYMI:  Brandan Buck on the Lost Liberalism of America First (Cato). Noria Doyle on How Plessy v. Ferguson sparked early civil rights activism from Milwaukee’s Black community in 1896 (Milwaukee Independent).  Alexis Coe, American History columnist for the NYTBR, lists some books to read on the US Supreme Court in "this moment of constitutional crisis" (NYT).  The rare book collection of the the Indiana Supreme Court Law Library (Indiana Lawyer).  Justice Jackson's inclusive original public meaning (Slate).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Snyder's "You Can't Kill a Man Because of the Books He Reads"

My Georgetown Law colleague Brad Snyder has published You Can't Kill a Man Because of the Books He Reads: Angelo Herndon's Fight for Free Speech  (W.W. Norton):

Decades before the impeachment of an American president for a similar offense, Angelo Herndon was charged under Georgia law with "attempting to incite insurrection"--a crime punishable by death. In 1932, the eighteen-year-old Black Communist Party organizer was arrested and had his room illegally searched and his radical literature seized. Charged under an old slave insurrection statute, Herndon was convicted by an all-white jury and sentenced to eighteen to twenty years on a chain gang. You Can't Kill a Man Because of the Books He Reads chronicles Herndon's five-year quest for freedom during a time when Blacks, white liberals, and the radical left joined forces to define the nation's commitment to civil rights and civil liberties.

Herndon's champions included the young, Black Harvard Law School-educated attorney Benjamin J. Davis Jr.; the future historian C. Vann Woodward, who joined the interracial Herndon defense committee; the white-shoe New York lawyer Whitney North Seymour, who argued Herndon's appeals; and literary friends Ralph Ellison, Langston Hughes, and Richard Wright. With their support, Herndon won his freedom and reinvented himself as a Harlem literary star until a dramatic fall from grace.

A legal odyssey of Herndon's narrow escape from certain death because of his unpopular political beliefs, You Can't Kill a Man Because of the Books He Reads explores Herndon's journey from Alabama coal miner to Communist Party organizer to Harlem hero and beyond. Brad Snyder tells the stories of the diverse coalition of people who rallied to his cause and who twice appealed his case to the U.S. Supreme Court. They forced the Court to recognize free speech and peaceable assembly as essential rights in a democracy--a landmark decision in 1930s America as well as today.

Here are some endorsements:

"Some works of history are top-down. Some bottom-up. You Can’t Kill a Man Because of the Books He Reads is both. Brad Snyder moves gracefully from the streets of 1930s Atlanta, where Angelo Herndon, a young Black radical, was charged with insurrection, all the way to the chambers of the U.S. Supreme Court. This is a hard and hopeful story. Snyder tells it with energy, economy, wide-ranging empathy, and quiet passion."

James Goodman, author of Stories of Scottsboro

"Angelo Herndon had been a Communist Party organizer for barely two years when the Atlanta police arrested him for attempting to incite an insurrection. In his careful, compelling new book, Brad Snyder recreates the extraordinary struggle to save Herndon from life on a Jim Crow chain gang for daring to promote ideas the authorities didn’t want to hear. A story of fundamental principles and unlikely heroes, expertly told."

Kevin Boyle, author of Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age

"A gripping story of how democracy triumphed under the most challenging circumstances. A timely book and a great read."

Patricia Sullivan, author of Justice Rising: Robert Kennedy’s America in Black and White

Kenneth W. Mack of the Harvard Law School will discuss the book with Professor Snyder over Zoom on Thursday at 7 p.m. EDT in an event sponsored by the Supreme Court Historical Society.  Washingtonians can hear Professor Snyder discuss the book in conversation with our Georgetown Law colleague Steven Vladeck at Politics & Prose on Connecticut Avenue, NW, on Friday, February 28 from 7 p.m. to 8p.m.  

--Dan Ernst

Weekend Roundup

• On February 21, 2025, the Heyman Center for the Humanities at Columbia University will convene a day-long event titled "The Law in Times of Emergency and Transition: Legal Perspectives on 40 Years of Democracy in Brazil." Registration is open to the public.  
  

• In Time Magazine's Made By History series: Karin Wulf on John Marshall's dinner with John Adams, Rachel Rosenbloom notes that Birthright Citizenship Has Been Challenged Before, and Bruce W. Dearstyne discusses TR's DOGE.
  

• Reviews of Jonathan Gienapp's Against Constitutional Originalism in the online journal of the Liberty Fundby John O. McGinnis and Mike Rappaport and Aaron N. Coleman.
  

• Keith Whittington discusses why free speech can't be taken for granted on the Inside Yale Law School podcast.

•  From ProMarket: Elizabeth Popp Berman (University of Michigan) on "How Industrial Policy Gave Us the Sherman Act." (H/t LPE Blog)
  

• A reminder: Amanda Tyler will speak on Mitsuye Endo and Japanese Incarceration on Zoom for the Supreme Court Historical Society on January 23 at 12 pm EST.
  

• Chelsea Gibson interviews Kenyon Zimmer, a historian of transnational radicalism, on his “comprehensive digital archive of Red Scare deportees” (SHGAPE Blog).
  

• Online and at the Signet Library in Edinburgh, Chloe Kennedy will discuss her book Inducing Intimacy: Deception, Consent and the Law on January 30, 6 - 8pm GMT.  More.
  

• Paul Finkleman discussed the complicated history of “John McLean: Southern Ohio’s Homegrown Anti-Slavery Justice" (UCNews).
  

• The Lillian Goldman Law Library at the Yale Law School, has a new exhibit.  Running through May 25, 2025, Flowers at Lambach "follows the history of a single manuscript volume: a collection of texts relating to canon law, produced by the scriptorium at the Benedictine Abbey of Lambach in Austria in the late 15th century, and entering into the collections of the Yale Law Library in 1949.
  

• An excerpt from Michelle Adams's The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North (Literary Hub) and Michigan Law's notice of the book.
  

• Just out from Oxford University Press: Redefining Comparative Constitutional Law: Essays for Mark Tushnet, edited by Madhav Khosla and Vicki C. Jackson.

• ICYMI: Eric Muller on what federal workers in a second Trump administration can learn from the lawyers of the War Relocation Authority (Chicago Tribune).  Therese O'Neill discusses the famous Mrs. Packard on the This Day In Esoteric Political History podcast. Egbert Benson: New York’s first Attorney General (New York Almanack). Alicia Gutierrez-Romine on the legal history of abortion bans (Perspectives in American History).  
  

• Update: Kenneth W. Mack and other historians (including Sarah Igo, Donald Critchlow, and Sean Wilentz) on Biden's presidential legacy (Politico).  An obituary of Shirah Neiman (1943-2025), who, some years after Eunice Hunton Carter left the office of the U.S. Attorney for the Southern District of New York, joined its by then all-male Criminal Division and became its expert on criminal tax law (NYT).  Holly Brewer on becoming a Friend of the Court (Perspectives in History).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Redburn, "The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis"

The California Law Review has published "The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis," by Kate Redburn (Columbia Law). The abstract: 

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists that they shared an approach to constitutional interpretation. The result was an argument that won the day in 303 Creative v. Elenis—that the government discriminates on the basis of speech content when it enforces public accommodations law in the sale of expressive products.

This research has important implications for our understanding of the conservative legal movement, the meaning of First Amendment equality, and the future of anti-discrimination law. First, by going to the origins of conservative Evangelical cause lawyering, this Article reveals compromises, tensions, and contingencies in the formation of today’s conservative legal movement. Second, this novel history helps illuminate key moves in expressive conduct doctrine that resurfaced in 303 Creative. Third, the story provides important resources for understanding the 303 Creative decision and where expressive association doctrine is likely to go next.

Read on here.

-- Karen Tani

JSCH 49:3

Journal of Supreme Court History 49:3 has been published:

"Judge" Eugene Brooks: Supreme Court Messenger, Proponent of Black Awareness, 1881-1926
Terence Walz

"The ct is disposed to consider the merits…Wow!": Anthony Lewis Takes Us Inside the Oral Arguments in NAACP v. Alabama ex rel. Flowers (1964)
Helen J. Knowles-Gardner

An End to Rebel "Punishment": The Test Oath Cases and the Constitutional Politics of Confederate Disqualification
M. Henry Ishitani

"Our Leading Feminist": Dorothy Kenyon and the Origins of Equal Protection for Women in Hoyt v. Florida
Isabel Miller

The Judicial Bookshelf
(reviews of Michael Nelson: Vaulting Ambition: FDR's Campaign to Pack the Court, and Greg Zipes, Justice and Faith, The Frank Murphy Story.
Donald Grier Stephenson, Jr.

--Dan Ernst

CFP: LCH 2025

[We have the following announcement from Simon Stern, President of the Association for the Study of Law, Culture & the Humanities.  DRE.]

We are excited to announce that we are now accepting submissions for the Twenty-Seventh Annual Conference of the Association for the Study of Law, Culture, and the Humanities. The conference will be held in person (with some online components) on June 17-18, 2025 at Georgetown Law in Washington, D.C. This year's theme is "Speech Matters."  You can find the call for papers on our website or view the PDF version.

We are also accepting applications for our annual Graduate Student Workshop, which will take place the day before the conference on June 16, 2025. Information on how to apply for the workshop can be found in the PDF or on our website here.